APPEAL COURT, HIGH COURT OF JUSTICIARY
 HCJAC 12
Appeal No: XC841/04
OPINION OF THE COURT
delivered by LORD OSBORNE
APPEAL AGAINST CONVICTION
RONALD BARBOUR SMART
HER MAJESTY'S ADVOCATE
Respondent: Ms. A. Grahame, A.D.; Crown Agent
3 February 2006
"(1) between 26 April 1999 and 9 December 2002, both dates inclusive, at 5 Abercromby Road, Castle Douglas, you RONALD BARBOUR SMART did take or permit to be taken or make 464 indecent photographs or pseudo-photographs of children; CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(a) as amended."
appellant lodged a Note of Appeal against conviction and sentence on
1. The sheriff failed to adequately or properly direct the jury in relation to the evidence. It was incumbent upon the sheriff to provide the jury with proper legal directions on the meaning of and definition of the crime specified on the indictment, and of the necessary elements to prove its commission. This he omitted to do. That omission in the particular circumstances of the case was fatal and resulted in a miscarriage of justice.
Whilst it is conceded that the question of whether it is appropriate or necessary to direct the jury on the facts is a matter within the discretion of the trial judge it is submitted in the particular circumstances of this case standing the technical nature of the evidence led at the trial, and the paucity of directly incriminating evidence, it was incumbent upon the trial judge to direct the jury as to the evidential foundation upon which they could conclude that the appellant 'made' the images recovered from the computer. This he failed to adequately do. No guidance was given in respect of how or on what evidence the jury could infer that the necessary mens rea was present to establish beyond reasonable doubt that the appellant intentionally 'made' the images. It is submitted that this case was not one of the types of cases that could be categorised as 'simple' and so relieved the sheriff from directing the jury on the evidence. Reference is made to the case of the References by the Scottish Criminal Cases Review Commission in the cases of Campbell; Steele and Gray Appeal Nos. XC956/03 (para. 98).
2. The directions that the sheriff
provided to the jury in relation to 'makes' (sheriff's charge page 15 at lines
13 to 17, and page 20 at lines 10 and 11) were insufficient. It is submitted that the contravention of
section 52(1)(a) of the Civic Government (
 The circumstances of the case briefly were that the Crown led evidence that the appellant had made indecent images of children by the use of his computer. The images had been recovered by the police from the hard drive of the appellant's computer. The police had examined some 3,500 images taken from that source, of which the vast majority were pornographic images of adults. However, a small proportion of the images were of children. In addition, evidence had been led by the Crown that the appellant had used his credit card to pay for access to internet sites which were recognisable as sites devoted to child pornography. These sites included "Underage Club", "Lolita", and "Elite Underage Club". The advertising material for some of these sites made it clear, not only that the images they contained were of children, but that they were indecent in substance. Evidence was also led that these sites targeted persons whose interests lay in child pornography and that the appellant had made payments to enable him to make the images subsequently found in the hard drive of his computer. In an interview with the police following upon his detention, the appellant stated, quoting the words used in the sheriff's Report to this court, that "he had the images with the intention of complaining to the firm that had acted as his 'server' regarding their existence". The appellant himself did not give evidence at the trial, but a Minute of Agreement was lodged relating to the transcript of the appellant's police interview, which was, of course, a production in the case. It should be recorded that the transcript of that interview was not made available to this court, either by the appellant or the Crown, despite our invitation that it should be.
Submissions for the appellant
 At the outset, counsel for the appellant stated that leave to appeal had been granted only in relation to ground 4 of the grounds of appeal; an application had been made under section 107(8) of the 1995 Act, but had been withdrawn. Accordingly, the appeal would proceed in relation to the matter of misdirection of the jury by the presiding sheriff. It was submitted that, looking at the sheriff's charge as a whole, it was deficient in material respects. There were important omissions and parts of what was said were erroneous. As a whole, the charge was flawed, which had led to a miscarriage of justice. In particular, there were no proper legal directions relating to the essential ingredients of the offence created by section 52(1)(a) of the 1982 Act. This offence possessed essential ingredients on which the jury should have been given specific directions. In particular, the following questions arose and should have been dealt with: (1) Were the images made deliberately and intentionally? (2) If they were, were they indecent? As regards the second question, the sheriff had given no guidance on the matter of the definition of "indecent"; he had left that to the jury.
 At this point in the submissions the court reached the tentative view that the submissions were going beyond the scope of the leave to appeal that had been granted. That concern was raised with counsel for the appellant and a discussion of it ensued. It was quite clear that the sifting judge had considered that "the directions on mens rea suggest an arguable ground of appeal". It was on that basis only that he had granted leave to appeal against conviction. In the light of that, the court indicated that it would entertain submissions only in relation to possible misdirection in relation to the matter of mens rea, but would not entertain submissions on alleged misdirection in relation to any other aspects of the case on which directions might have been appropriate. That decision having been announced, counsel for the appellant proceeded in relation to the matter in relation to which leave to appeal had been granted.
 Counsel next referred us to the provisions of section 52 of the 1982 Act. He drew our attention to the fact that the present prosecution had been brought under section 52(1)(a). Associated offences were created by section 52(1)(b) and (c). It was of significance to note that under section 52(5) a statutory defence was created in relation to the offences created by section 52(1)(b) and (c), but not (a). In these circumstances, it was of particular importance that appropriate directions should have been given to the jury as to criminal intent in relation to that latter offence, which was not an absolute one.
 Counsel for the appellant next embarked upon a consideration of the sheriff's charge to the jury. At page 10, lines 11 to 18, during the course of a passage which was concerned with the need for corroboration in general, the sheriff had posed the question of whether the circumstances in the case pointed to the fact that the appellant had "activated images of children". That itself was a misdirection, since the statutory provisions creating the offence did not use that expression; they used the expression " ... makes any indecent photograph ... of a child". At page 11, lines 3 to 10 of the charge, the sheriff dealt further with the crime alleged; he said:
"...has a crime been committed, is Mr. Smart identified as the person who carried out the acts which are alleged and, in regard to the downloading or the activating on the computer, did he know that he was doing it or did these matters just come without him having any active part in the process? These are the essential matters from which evidence from more than one source is required ... ".
 Counsel for the appellant went on to explain, in greater detail than could be gleaned from the sheriff's charge or Report, certain features of the background of the case; in particular, the form and location in the computer information in which the images of children had been found. These were (1) the temporary internet files; and (2) the lost files, the contents of which, in use, might be discarded. He explained that when a computer user browsed an internet site, material from that site would be stored in a temporary internet file; it might subsequently be transposed to a lost file when downloaded material was deleted. The Crown's case here was that some of the allegedly offending images were in a temporary internet file and some were in lost files. In particular 164 images were found in the former and 250 in the latter. At this point counsel made reference to section 52(8)(c)(i) and (ii) which defined the word "photograph" for the purposes of section 52. It was plain that data stored on a computer disc, or by other electronic means, which was capable of conversion into a photograph fell within the definition.
 Counsel went on to explain that the appellant had been
interviewed by the police on
 Counsel continued his submissions with a reference to page 15 of the sheriff's charge. He submitted that what was said there was as close as the sheriff had got to attempting a definition of the crime involved. Counsel also drew our attention to a passage on page 20 of the charge which was pertinent to the issue raised. However, there the sheriff had used the word "activate", which did not appear in the statutory provisions.
 Counsel went on to examine relevant authorities. The first of these was Longmuir v H.M. Advocate 2000 S.C.C.R. 447, a case concerned with a conviction under section 52 of the 1982 Act. In that case the court had defined what was meant by the word "makes" in that context. It was said to be apt to cover the activity by which a person, using a computer, brought into existence the data stored on a computer disc. The term was an apt description of the way in which data stored on a disc was produced, namely by the use of a computer extracting electronic signals from the internet and converting them into that data for storage.
 Counsel next referred to R. v Smith and R. v Jayson  1 Cr. App. R. 212. These cases dealt with offences which were the counterparts of those created by section 52 of the 1982 Act. Their significance in the present context was that mens rea was fully discussed. In paragraph 34 of the report the court had dealt with the issue of mens rea saying:
"In our judgment, that mens rea is that the act of making should be a deliberate and intentional act with knowledge that the image made is, or is likely to be an indecent photograph or pseudo photograph of a child".
In paragraph 36 it was made clear that the requisite mens rea did not require an intention on the part of the maker to store the images with a view to future retrieval. Thus it had been made clear by the Court of Appeal that the offence involved was not an absolute offence and it was submitted that it was imperative that the sheriff should have charged the jury in explicit terms regarding the mens rea involved. Nowhere in his charge, it was submitted, did he do that. The significance of mens rea had been appreciated by the court in Bruce v McLeod 1998 S.C.C.R. 733 at pages 734 to 735. Deliberate action was necessary before mens rea could be established, although, in that case, on the facts, the issue of mens rea turned out not to be of importance.
 Counsel then turned to the consequences of what he contended had been a flawed charge. In short, he submitted that there had been a failure to direct the jury on an essential ingredient of the offence. In the context, that amounted to a miscarriage of justice. In that connection he referred to a number of cases including Docherty v H.M. Advocate 1945 J.C. 89, Tobin v H.M. Advocate 1934 J.C. 60, and Mills v H.M. Advocate 1935 J.C. 77. The appellant's position was that none of the directions given by the sheriff amounted to a sufficient direction on the issue of mens rea.
 In view of the continuing concern which the court had in relation to exactly what had been the nature of the appellant's defence to the case against him, we adjourned the hearing for a short period to enable the appellant and his advisers to consider what material should be the basis of our decision in that regard. Our concern was that the account given of the contents of the appellant's interview with the police, which was the only material emanating from him put before the jury, differed from the sheriff's account of it given to us in his Report. We were informed that the matter was complicated by the fact that parts of the transcript of that interview had been excised before the tape of it had been played to the jury. Following this adjournment counsel for the appellant stated that what the sheriff had recorded in his Report was accurate and could therefore be relied upon.
Submissions of the Crown
 In order to establish an offence under section 52 of the 1982 Act, the Advocate depute submitted that three things had to be proved initially. These were (1) photographs or pseudo photographs; (2) which were of a child; and (3) which were indecent. Those facts might be proved, or agreed. No mental element was involved in that. However, it was accepted that the Crown would also require to prove a fourth element, which was that the photographs were "made". That involved proof of an action and the mens rea involved in it. The latter embraced the mindset of the accused. That was something which would exclude accidental making of such photographs. The Crown did not accept the soundness of the dicta relied upon by the appellant in R. v Smith and R. v Jayson. As regards the word "makes" in section 52(1)(a) of the 1982 Act the Crown supported the view taken in R. v Bowden  1 Cr App R 438. In that case it was said that the words "to make" had to be given their natural and ordinary meaning; in the context that was "to cause to exist; to produce by action, to bring about". The act of making a photograph did involve mens rea to a limited degree.
 The Advocate depute went on to draw attention to certain passages in the sheriff's charge. At pages 12 to 13 the sheriff had given the customary directions relating to the statements made by the accused during the course of his interview with the police. At page 15 he had explained to the jury the significance of the word "makes" in section 52(1)(a) of the 1982 Act. The transfer of information from a server or large scale storage system to a smaller system would involve downloading and the making of a photograph within the definition contained in the statute. On the whole matter, there was no substance in the appellant's submissions. Looking at the charge of the sheriff as a whole and at the particular passages to which the court's attention had been drawn, there were adequate directions given to the jury relating to the mens rea of making an indecent photograph of a child. In any event, no miscarriage of justice had occurred.
"Any person who -
(a) ... makes any indecent photograph or pseudo photograph of a child;
shall be guilty of an offence under this section."
Section 52(8) of the same Act provides:
"In this section - references to a photograph include -
(ii) data stored on a computer disc or by other electronic means which is
capable of conversion into a photograph."
In the discussion before us there was little or no dispute regarding the meaning of the word "makes" in section 52(1)(a) of the 1982 Act. Plainly the word must be given its natural and ordinary meaning. The meaning favoured in R. v Bowden at page 444 was "to cause to exist; to produce by action, to bring about". We see no difficulty attached to the adoption of such a meaning. In Longmuir v H.M. Advocate, at page 451, the court found that it had
"...no difficulty with the proposition that the word 'make' is apt to cover the activity by which a person using a computer brings into existence the data stored on a computer disc. ... In the note of appeal the appellant sets out a meaning of the word 'make' taken from the New Shorter Oxford Dictionary as 'produced by ... extraction'. That is an apt description of the way in which data stored on disc is produced, namely by use of a computer extracting electronic signals from the internet and converting them into that data for storage".
That is, in our opinion, an approach wholly consistent with the provisions of section 52(8)(c) which provides that
"references to a photograph include -
(ii) data stored on a computer disc or by other electronic means which is
capable of conversion into a photograph."
 The focus of the discussion before us was, of course, on the matter of mens rea in relation to the offence under consideration. Counsel for the appellant commended to us the view expressed by Dyson L.J. in R. v Smith and R. v Jayson at page 222, paragraph 34. There he said of the parallel English statutory provisions:
"In our judgment, that mens rea is that the act of making should be a deliberate and intentional act with knowledge that the image made is, or is likely to be, an indecent photograph or pseudo photograph of a child".
While no attempt was made in Bruce v McLeod by Lord Prosser to define the mens rea involved in the offence, what emerged from his observations at page 734 was the assumption that mens rea was an essential ingredient in the offence.
 The Crown took up a somewhat surprising position in the present
case, contending that we should not follow the definition set forth in R. v Smith
and R. v Jayson. That position was
not elaborated to any extent. In our
view, however, it would be appropriate to give weight to an interpretation by
the Court of Appeal in
 In our view, there is a strong presumption in favour of a requirement of mens rea in the commission of an offence created by statute, so that a statute will not be read as abrogating this fundamental requirement, in the absence of clear words excluding mens rea. As Lord Reid said in the House of Lords in Sweet v Parsley  AC 132 at 148:
" ... there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did."
In the same case, at page 153, Lord Morris of Borth-y-Gest said:
" ... it would not be reasonable lightly to impute to Parliament an intention to create an offence in such a way that someone could be convicted of it who by all reasonable and sensible standards is without fault."
Lord Diplock, in the same case, at page 163 said that the mere fact that Parliament had made certain conduct a criminal offence gave rise to some implication about the mental element of the conduct proscribed. He added:
"This implication stems from the principle that it is contrary to a rational and civilised criminal code, such as Parliament must be presumed to have intended, to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law (ignorantia iuris non excusat) and has taken all proper care to inform himself of any facts which would make his conduct lawful."
What was said in R. v Smith and R. v Jayson appears to us to be wholly consistent with these principles. As we see it, however, the position of the Crown would not be consistent with those principles. Under its approach, the making of an indecent photograph of a child would amount to a criminal offence even though the person responsible for the making of the photograph was unaware that it was a photograph of a child, or that it was indecent, against a background of there being no statutory defence available under section 52(5) of the Act related to the knowledge of the accused person. In our view, that would be making "criminals of persons who were in no way blameworthy in what they did". In these circumstances, for present purposes, we are prepared to proceed upon the basis that the offence with which we are dealing is one involving mens rea, as described in R. v Smith and R. v Jayson. On the basis that that mens rea is an essential ingredient of the offence created by section 52(1)(a) of the 1982 Act it would normally be appropriate for any presiding judge charging a jury to make some reference to it. However, exactly what it would be appropriate to say would depend upon the circumstances of the case, since there might be cases where the issue of mens rea was crucial to the decision which the jury required to take whereas, in other cases, the focus of controversy might lie elsewhere.
 Coming to the specifics of the present appeal, we have to observe that we encountered very considerable difficulty during the hearing in identifying exactly what defence had been advanced on behalf of the appellant. The appellant himself did not give evidence but the contents of his tape recorded interview with the police were apparently relied upon. At one stage in the hearing it appeared to be said on the appellant's behalf that he had suggested in that interview that he had been unaware that he had downloaded any child pornography and that this had happened as an incidental consequence of his viewing adult pornography on various websites. However, that suggestion did not appear to be consistent with the account of the evidence given by the sheriff in his Report under the heading "Collateral Consequence of Browsing", where he said that evidence had been led that the appellant had used his credit card to pay for access to sites which were recognisable as sites devoted to child pornography. These sites included those named, to which we have already referred. The titles of these websites plainly indicate a likelihood that child pornography will be available in them. Furthermore, the sheriff drew attention to the fact that the advertising material for these sites made it clear, not only that the images available were of children, but that they were also indecent. In the same part of his Report, the sheriff states that, in his interview with the police, the appellant had said that he had the images under consideration with the intention of complaining to the firm that acted as his server regarding their existence. That is a position which seems to us to be wholly inconsistent with the idea that the images were downloaded innocently, as a collateral consequence of browsing among adult pornography. Faced with this serious level of uncertainty as to exactly what the position of the appellant in fact was at his trial, counsel was pressed to indicate on what factual basis the court should proceed. The alternatives appeared to be the furnishing of the transcript of the interview, so far as it was before the jury, to this court, or reliance upon what was said by the sheriff in his Report. However, after having had an opportunity for consideration, the former course was not taken. What was indicated was that we should proceed on the basis of the contents of the sheriff's Report as regards the evidence in the case.
 Proceeding then upon that basis, we were informed that the appellant had stated in his interview with the police that he had the offending images with the intention of complaining to the firm that acted as his server regarding their existence. It appears to us to be inherent in that statement that the appellant possessed the necessary mens rea in the making of the images concerned. Standing that position, we find it impossible to discern what relevant defence was in fact advanced at the trial in relation to the issue of mens rea. That being so, the conclusion which we have reached is that mens rea was not in reality a live issue at the trial. In those circumstances, we conclude that the alleged failure of the sheriff as regards directions on that matter could not be productive of a miscarriage of justice.
 In any event, we consider that the passages at pages 10, lines 11 to 18 and 11, lines 3 to 10, did indicate to the jury the need for the mental element in the commission of the crime. The passage at page 20, lines 1 to 16, appears to us to be to a similar effect. For these reasons also we consider that no miscarriage of justice has occurred. In these circumstances the appeal is refused.